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Arbitrator finds employer violated OHSA workplace-violence obligations

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A labour arbitrator has found that a mental health organization violated the Occupational Health and Safety Act when it failed to take certain workplace-violence precautions.

The organization provided services to persons with mental health issues, including securing housing.

A Case Manager with the organization became aware that a client had sent another client a text suggesting that he wanted to sexually assault the employee.  The organization decided to bar the client from contact with the employee and from attending drop-in sessions. Nevertheless the client attended drop-in sessions on at least two subsequent occasions.

The arbitrator found that the organization did not have any means of preventing a client from texting another client an offensive text that threatened an employee.  However, the organization, having barred the client, failed to ensure that the client “heeded the injunction” and stayed away. That was a violation of the OHSA.  There was no evidence that the employee encountered the client at any of the drop-ins after he was barred, so there was no basis for an award of damages.

In a second incident, the employee reported that she felt threatened by a client.  The employee’s notes included references to the client “‘leaning over writer’, ‘shouting about aliens’, invading her personal space ‘as he kept tapping her on the knee’, becoming ‘extremely agitated’, leaning over the Grievor, speaking about eating humans and making ‘a sudden strangling gesture towards [the Grievor]’, referring to having been on probation in connection with charges of sexual assault of a woman, ‘leaning over [the Grievor] in an aggressive manner and she had to push him back away from her’, being told by the Grievor that his behaviour was threatening and that he does not respect her personal space, ‘advancing towards [the Grievor] on a couple of occasions screaming about aliens, homosexuals and radiation, invading the Grievor’s personal space, and, finally, charging the Grievor, pushing her forcefully in the chest, and causing her to lose her balance.’

The organization directed the employee to stay out of that client’s residence based on her perception of a threat, but she ignored that direction.  The arbitrator decided that the organization had violated the OHSA by failing to ensure that the employee complied with the employer’s direction. Again, no damages were warranted, but the arbitrator granted a “declaration” that the employer had breached the OHSA.

Ontario Public Service Employees Union, Local 548 v Cota Health, 2016 CanLII 81970 (ON LA)